State v. Lopez

• Decision Date: 03 September 1985
• Citation: 497 A.2d 390,197 Conn. 337
• Parties: STATE of Connecticut v. Jose LOPEZ.
• Court: Connecticut Supreme Court

Page 390

497 A.2d 390

197 Conn. 337

STATE of Connecticut v. Jose LOPEZ.

Supreme Court of Connecticut.

Argued May 1, 1985.

Decided Sept. 3, 1985.

Daniel V. Presnick, New Haven, for appellant (defendant).

John A. Connelly, State's Atty., with whom, on the brief, was Catherine J. Capuano, Deputy Asst. State's Atty., for appellee (state).

Before PETERS, C.J., and HEALEY, SHEA, SANTANIELLO and CALLAHAN, JJ.

CALLAHAN, Associate Justice.

The defendant, Jose Lopez, pleaded guilty to a charge of murder, in violation of General Statutes § 53a-54a, on April 18, 1983. ¹ Before accepting the defendant's plea, the trial court did a searching canvass, concluded that there was a factual basis for the charge and that the plea was voluntary. Subsequent to the plea, but prior to sentencing, the defendant retained other counsel and filed a motion to withdraw his guilty plea. The motion was based on a claim that "[t]he plea was involuntary, or was entered without knowledge of the nature of the charge," and that it "resulted from the denial of effective assistance of counsel." The trial court denied the motion to withdraw the plea after an extensive hearing and imposed a sentence of twenty-five years imprisonment. The defendant appeals, claiming that the trial court erred in: (1) finding that the defendant's guilty plea was knowing, intelligent and voluntary and made with the effective assistance of counsel; (2) considering the strength of the state's case and the probable outcome of a trial in its decision as to whether the defendant was denied the effective assistance of counsel; (3) failing adequately to inform the defendant of the nature of the charge against him and of his right against self-incrimination prior to accepting his guilty plea; (4) becoming an active participant in the plea bargaining process by allegedly holding a "secret pretrial conference" from which the defendant and the public were unconstitutionally excluded; (5) refusing to dismiss the charges for lack of a probable cause hearing; (6) denying the defendant's motion to disqualify the court on sentencing; (7) ruling that it lacked the authority to suspend a portion of the sentence; and (8) denying his motion for a waiver of fees, costs and expenses. The defendant also challenges the plea bargaining procedure on constitutional grounds.

The underlying facts of the crime leading to the defendant's guilty plea are as follows: On August 28, 1982, the defendant attended a birthday party for his daughter, held at the home of the child's mother in Waterbury. During the party, an argument occurred in which both the defendant and Juan Ortiz, the new boyfriend of the mother of the defendant's child, became involved. The defendant left the party and drove to his apartment, where he retrieved a shotgun and a box of shotgun shells. He returned to the party and confronted Juan Ortiz. The two men fought, and the defendant fired his gun, intending to hit Ortiz, but instead fatally shooting Sergio Torrez, who was standing nearby. The defendant fled from the house, and was apprehended by the police en route to Hartford later that night. The following morning, August 29, 1982, the defendant, having been fully advised of his Miranda rights, gave a signed statement to the Waterbury police recounting the events of the previous night.

On October 5, 1982, the defendant was indicted for the crime of murder, in violation of General Statutes § 53a-54a. The defendant retained counsel and initially entered a plea of not guilty. On April 18, 1983, after assurances from the state that the minimum sentence would be recommended, the defendant withdrew his original plea and entered a plea of guilty to the charged offense. The trial court conducted "a typical searching canvass which included a detailed description of the nature of the charge" and, after finding "that there was a factual basis for the charge and that the plea was voluntary," accepted the defendant's guilty plea.

On May 20, 1983, the date on which sentencing was scheduled to take place, the defendant appeared with new counsel and filed a motion to withdraw his guilty plea, claiming that "[t]he plea was involuntary, or was entered without knowledge of the nature of the charge," and that it "resulted from the denial of effective assistance of counsel." After an evidentiary hearing, the trial court denied the defendant's motion to withdraw his guilty plea and sentenced him to twenty-five years imprisonment.

I

The defendant's primary claim on appeal is that the trial court erred in accepting his guilty plea and in denying his motion to withdraw that plea. He claims that the plea was involuntary, entered without knowledge of the nature of the charge against him and resulted from ineffective assistance of counsel.

A guilty plea that is not both voluntary and knowing is in violation of due process and thus void. McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1170, 22 L.Ed.2d 418 (1969); State v. Marra, 174 Conn. 338, 340, 387 A.2d 550 (1978); State v. Battle, 170 Conn. 469, 473, 365 A.2d 1100 (1976). For a guilty plea to be truly voluntary, the defendant must understand the law in relation to the facts. McCarthy v. United States, supra, 394 U.S. 466, 89 S.Ct. 1170-71. Because a defendant waives several constitutional rights when he elects to plead guilty to a criminal offense, the choice of a guilty plea is of profound significance. Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969); State v. Childree, 189 Conn. 114, 120, 454 A.2d 1274 (1983). In pleading guilty, a defendant waives his privilege against compulsory self-incrimination, his right to trial by jury and his right to confront his accusers. Boykin v. Alabama, supra; McCarthy v. United States, supra; State v. Childree, supra; Practice Book § 711(5). A guilty plea is therefore constitutionally valid only if the record affirmatively discloses that the plea was entered voluntarily and intelligently. Boykin v. Alabama, supra, 395 U.S. 242, 89 S.Ct. 1711-12; State v. Marra, supra; Blue v. Robinson, 173 Conn. 360, 373, 377 A.2d 1108 (1977).

A

The defendant first claims that his guilty plea resulted from the denial of the effective assistance of counsel. Specifically, he asserts that his counsel should have questioned him about his intent at the time of the crime and should have informed him of the possibility of conviction of the lesser included offense of manslaughter if he lacked the requisite intent for murder. The defendant maintains that his counsel's failure so to question and inform him resulted in a plea which was not voluntary.

A defendant must satisfy two requirements in order to prevail on a claim that his guilty plea resulted from ineffective assistance of counsel. Myers v. Manson, 192 Conn. 383, 393, 472 A.2d 759 (1984). First, he must prove that the assistance was not " 'within the range of competence displayed by lawyers with ordinary training and skill in the criminal law'; State v. Clark, 170 Conn. 273, 283, 365 A.2d 1167, cert. denied, 425 U.S. 962, 96 S.Ct. 1748, 48 L.Ed.2d 208 (1976), quoting Gentry v. Warden, 167 Conn. 639, 646, 356 A.2d 902 (1975)...." Id. Second, there must exist " 'such an interrelationship between the ineffective assistance of counsel and the guilty plea that it can be said that the plea was not voluntary and intelligent because of the ineffective assistance. Dukes v. Warden, 161 Conn. 337, 344, 288 A.2d 58 (1971), aff'd, 406 U.S. 250, 92 S.Ct. 1551, 32 L.Ed.2d 45, reh. denied, 407 U.S. 934, 92 S.Ct. 2464, 32 L.Ed.2d 817 (1972).' " Myers v. Manson, supra, 192 Conn. 393-94, 472 A.2d 759.

In the present case, the defendant is unable to meet even the first of these two requirements. The record indicates that the defendant's original attorney adequately investigated the case and informed the defendant of the charge against him and the likelihood of a murder conviction. At the hearing on his motion to withdraw his guilty plea, the defendant admitted that his counsel had told him of the possibility of conviction of manslaughter in some degree, but that "the probability of such a disposition was highly unlikely."

It is within the range of reasonably competent counsel for an attorney to advise his client to plead guilty even though defenses may conceivably exist. Parker v. North Carolina, 397 U.S. 790, 797-98, 90 S.Ct. 1458, 1462-63, 25 L.Ed.2d 785 (1970); McMann v. Richardson, 397 U.S. 759, 770, 90 S.Ct. 1441, 1448, 25 L.Ed.2d 763 (1970); Jones v. Estelle, 584 F.2d 687 (5th Cir.1978); Herring v. Estelle, 491 F.2d 125, 128 (5th Cir.1974). Here, the defendant had signed a voluntary statement that he had left the party in anger, driven to his home, retrieved a gun and ammunition, and returned to the party where he fired the shot that killed the victim. It was thus highly unlikely in this case that the defendant could successfully claim a lack of intent to reduce his conviction from murder to manslaughter. Based on this record, the advice which the defendant received was well within the range of competence required of attorneys representing clients in criminal cases.

B

The defendant claims that the trial court, in denying his motion to withdraw his guilty plea, should not have considered the strength of the state's case and the probable outcome were the case to go to trial. In his brief, he characterizes the court's ruling as improperly resting on "[t]he court's opinion [as to] the guilt or innocence of [the] accused." This characterization, however, is inaccurate. The defendant's motion to withdraw his plea was largely premised on his assertion that the plea resulted from the ineffective assistance of counsel. As on appeal, the defendant's claim on the motion to withdraw was essentially that he had not been adequately informed of the possibility of a manslaughter conviction. In evaluating this claim, the trial court properly examined the strength of the state's case against ...